In August 2007 Judge Sonia Sotomayor sat on a panel that ruled on an appeal in a high school free speech case, Doninger v. Niehoff.

The ruling in that case has come under heavy criticism from some civil libertarians, but though it’s not good, I’m not convinced it’s as bad as some people have made out. Here’s the deal:

Avery Doninger was a member of the student council of Lewis Mills High School in Connecticut. In the spring of 2007, the student council and the LMHS administration butted heads over a school concert called Jamfest, which administrators were not allowing to go forward on its originally scheduled date.

At one point in the dispute Doninger put up a blogpost saying that the principal had canceled the concert because she was “pissed off” about student pressure. Doninger called the administration “douchebags” for canceling Jamfest, and urged students to complain to the principal and “piss her off more.”

According to the principal, however, the concert had never been canceled, and in fact the day after Doninger put up her post, students and administrators reached an agreement to reschedule it.

The principal learned of Doninger’s blogpost two weeks after it went up, and punished Doninger for posting it by not allowing her to run for Senior Class Secretary. She gave four reasons: Doninger had not followed proper procedures for resolving disagreements with the administration, the post’s language had been “vulgar,” claims in the post had been inaccurate, and the exhortation to other students to “piss her off more” had been inappropriate.

Doninger ran as a write-in candidate in the election, and won, but was not allowed to take office. She and her parents then challenged that decision in court, asking for an injunction that would allow her to be seated as class secretary.

A federal district court denied that request, saying that Doninger did not have a strong enough likelihood of winning her case at trial. In making that ruling, the court accepted the principal’s account of several factual matters, rejecting Doninger’s claims.

This is where Sotomayor enters the picture, sitting as a member of a three-judge appeals court panel.

To win on appeal, Doninger would have had to convince the court that she would have “a clear or substantial likelihood of success” at trial on the underlying issues. She wasn’t able to, and the appeals court unanimously affirmed the district court’s ruling.

The Sotomayor panel found that calling administrators “douchebags” and encouraging students to “piss off” the principal was “the sort of language that may properly be prohibited in schools.” It also found that because that language created “a risk of substantial disruption within the school environment,” it could properly be the subject of discipline even though it occurred off campus.

In reaching this second conclusion, the court relied on the district court’s finding that Doninger’s claim that Jamfest had been cancelled was “at best misleading and at worst false.” By spreading inaccurate information in an inflammatory manner, the court said, Doninger had disrupted not just the school, but also “the proper operation of LMHS’s student government.”

The ruling thus found that the district court had not overstepped its authority in denying the injunction. It did not, however, endorse the administration’s decision to strip Doninger of the right to run for student government office. “We are not called upon,” the judges wrote, “to decide whether the school officials in this case exercised their discretion wisely.”

So what’s the takeaway?

The court found that Doninger had disrupted efforts to resolve the dispute between the student council and the administration by spreading inaccurate and inflammatory information, and it grounded its decision in that finding. Given Supreme Court precedent in this area, this doesn’t strike me as a completely wrongheaded conclusion. I think that the Supreme Court has decided a lot of its school free speech cases wrongly, but that’s not for an appellate court to say — they are obligated to follow the Supremes’ guidance where they can. So I hesitate to say that the core ruling here was wrong.

There are aspects of the decision that do trouble me, though. I think it’s wrong, even under current Supreme Court precedent, to say that the Constitution does not protect a high school student’s right to call her principal a “douchebag,” or to encourage other students to engage in activities that are intended to “piss her off.” I also think that the court adopted a cramped view of what constitutes “good citizenship,” failing to engage with the idea that oppositional, aggressive defenses of one’s interests may at times be appropriate — even in a school setting.

But this was a unanimous decision rejecting a motion for an injunction, and it was not a decision that Sotomayor wrote. Although she obviously endorsed the ruling by voting for it, I don’t think it’s necessarily useful to act as if she bears responsiblilty for every detail and nuance of the decision.

I’m left a little uneasy by this new piece of information, but not much more than a little, and I don’t agree with Paul Levinson that it, on its own, is disqualifying.

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9 comments

“I don’t think it’s necessarily useful to act as if she bears responsiblilty for every detail and nuance of the decision.”

Just to be clear: my point is that it doesn’t matter whether she’s responsible for “every detail and nuance”. What counts is that she didn’t oppose this decision – and/or, if she did, that she lacked insufficient powers of logic and persuasion to convince her colleagues not to hand down this decision. Instead, she endorsed the decision, and deprived the victim of First Amendment protection.

This is not the kind of judge we need on The Supreme Court.

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As for your point about what Appellate Courts can do – look at the decisions of Judge Learned Hand, for an example of the powerful, progressive impact that an Appellate Judge can have.

This should serve as a warning to everyone- be careful of what you post online. Doniger posted the concert was cancelled- within a few days it was rescheduled. Ok, so he was mad. Two weeks later the post is still there, for school administrators to read. And BONUS- they get called douchebags… seriously, did he think his life wouldn’t be miserable after that? Serves him right.